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Judge dismisses Alderman Levasseur's suit against radio host Girard

By TED SIEFERNew Hampshire Union Leader

MANCHESTER — A superior court judge has largely sided with the city and radio host Rich Girard in dismissing a lawsuit brought by Alderman Joe Kelly Levasseur over the release of emails under the state’s Right-To-Know law.

At the same time, Levasseur said the ruling validated his main concern by requiring the city to redact — or black-out — the names, addresses, phone-numbers and email addresses of constituents in any of the requested emails.

Levasseur had filed the lawsuit in late February, seeking to block the release or dissemination of information Girard had sought concerning his interaction with department heads and constituents.

Levasseur, who has engaged in a long-running feud with Girard, had based his argument largely on the contention that constituent emails were not “governmental records” under RSA 91-A, the state’s Right-To-Know law.

Hillsborough County Superior Court Judge Diane Nicolosi agreed that such emails could not properly be considered government records, but she said that the city was within its rights to release them.

“The emails in question were sent via the city’s computer server, placing them in the city’s possession and control,” Nicolosi wrote in her ruling, which was issued last week. “Therefore, while the city may not be required to disclose emails under RSA 91-A, it may choose to do so if it wishes. The court is not in a position to question or alter the city’s internal policy decisions.”

Nicolosi had already rejected Levasseur’s request for an immediate injunction against the city’s release of the materials, and her decision grants motions from Girard and city Solicitor Tom Clark to dismiss the suit altogether.

As a stipulation in her ruling, the judge did find that Levasseur had raised a valid privacy interest concerning constituents, and she called on the solicitor’s office to redact any personally identifying information in the emails.

“Given the frequency identity fraud these days and harassment, the court finds it prudent to protect the constituents’ identities,” Nicolosi wrote.

The judge also granted that Levasseur, an attorney, may have the right to invoke attorney-client privilege in blocking the release of certain emails. The alderman would have 14 days to review such materials; if no such provision is found to apply, all records are to be released within 20 days of the ruling.

For Levasseur, the ruling was a signal that the aldermen had the right to set policies governing the city’s response to right-to-know requests, in particular assessing fees to comply with them. He has argued that city departments have had to devote dozens of hours to comply with the requests.

“Next, the aldermen must put a payment policy in place,” Levasseur said in an email Monday. “Girard’s request for over 18,000 emails is nothing but petty politics, juvenile antics and a waste of taxpayers resources. With all the potholes we have to fix, the last thing we need is to have city employees dealing with Girard’s nonsense.”

Girard had a very different take on the ruling, calling it “pretty unequivocal” in his favor.

“The court had better things to do that day, and the solicitor had better things to do, and I had better things to do,” Girard said. “The only person who didn’t was Joe Levasseur.”

Girard said the city had, at his insistence after the court hearing last month, released a group of emails that were being withheld in light of Levasseur’s lawsuit. Girard had requested communications between Levasseur and constituents concerning the Manchester Dog Park. As it turns out, the withheld material did not include any constituent emails, Girard said.

“The city said it doesn’t have them because they never crossed the city server,” Girard said.

Levasseur’s suit, he added, was an attempt to harass him, and “the judge took the gavel and banged it off his forehead.”tsiefer@unionleader.com